Jan 27 2015, 9:11 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark W. Rutherford Gregory F. Zoeller
Stephen R. Donham Attorney General of Indiana
Thrasher & Voelkel, P.C.
Ellen H. Meilaender
Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Tiplick, January 27, 2015
Appellant-Defendant, Court of Appeals Cause No.
49A04-1312-CR-617
v. Appeal from the Marion Superior
Court; The Honorable Steven
Eichholtz, Judge;
State of Indiana, 49G20-1210-FC-70439
Appellee-Plaintiff.
May, Judge
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[1] Christopher Tiplick appeals the denial of his motion to dismiss eleven counts of
his eighteen count indictment. He presents multiple issues for our review, one
of which we find dispositive: whether, at the time of Tiplick’s alleged offenses,
Ind. Code § 35-48-4-10(a), which prohibited dealing in a synthetic drug, and
Ind. Code § 35-48-4-11, which prohibited possession of a synthetic drug, were
unconstitutionally vague when the synthetic drug alleged to have been dealt in
or possessed was not listed in the relevant definitional statutes and can be found
only in the Pharmacy Board Regulations?
[2] We reverse and remand.
Facts and Procedural History
[3] On October 18, 2012, the State charged Tiplick with: Count I, Class C felony
conspiracy to commit dealing in a lookalike substance; 1 Count II, Class C
felony dealing in a lookalike substance;2 Count III, Class C felony conspiracy to
commit dealing in a lookalike substance; Count IV, Class C felony dealing in a
lookalike substance; Count V, Class C felony conspiracy to commit dealing in a
lookalike substance; Count VI, Class C felony dealing in a lookalike substance;
Count VII, Class D felony conspiracy to commit dealing in a synthetic drug; 3
Count VIII, Class D felony dealing in a synthetic drug; 4 Count IX, Class D
1 Ind. Code § 35-48-4-4.6(a) (dealing in a lookalike substance); Ind. Code § 35-41-4-2 (conspiracy) (2012).
2 Ind. Code § 35-48-4-4.6(a)(1) (2012).
3
Ind. Code § 35-48-4-10(a) (dealing in a synthetic drug); Ind. Code § 35-41-5-2 (conspiracy) (2012).
4
Ind. Code § 35-48-4-10(a) (2012).
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felony possession of a synthetic drug;5 Count X, Class D felony conspiracy to
commit dealing in a synthetic drug; Count XI, Class D felony dealing in a
synthetic drug; Count XII, Class D felony possession of a synthetic drug; Count
XIII, Class D felony conspiracy to commit dealing in a synthetic drug; Count
XIV, Class D felony dealing in a synthetic drug; Count XV, Class D felony
possession of a synthetic drug; Count XVI, Class C felony dealing in a lookalike
substance; Count XVII, Class D felony dealing in a synthetic drug; and Count
XVIII, Class D felony possession of a synthetic drug. The charges were based
on undercover observations and purchases at three stores owned by Tiplick on
September 20, 2012, October 9, 2012, and October 10, 2012. The charging
information and accompanying probable cause affidavit alleged Tiplick sold,
possessed, or entered into a conspiracy to sell “spice,” (App. at 19-24), and
some of the packages sold to undercover officers contained “XLR11(1-
(flouropentyl)indol-3-yl)-2,2,3,3,-tetramethylcyclopropy)methanone).” (Id. at
28.)
[4] On January 17, 2013, Tiplick filed a motion to dismiss the counts against him,
arguing:
1) the statutes as charged, I.C. [§ 35-48-4-10(a)(1), I.C. § 35-48-4-10(b),
I.C. § 35-48-4-11(1), and I.C. § 35-48-4-13(b)(2)] are unconstitutionally
“vague” in violation of the Fifth and Fourteenth Amendments to the
United States Constitution and Article One, Sections Twelve and
5
Ind. Code § 35-48-4-11 (2012).
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Thirteen of the Constitution of the State of Indiana and 2) the statutes
cited violate the Distribution of Powers Clause contained in Article
Three, Section One of the Constitution of the State of Indiana.
[5] (Id. at 37.) The trial court denied Tiplick’s Motion to Dismiss and his motion
to reconsider, then granted his motion to certify the order on his motion to
dismiss for interlocutory appeal. We accepted jurisdiction.
Discussion and Decision
[6] Generally, we review the denial of a motion to dismiss for an abuse of
discretion, McCown v. State, 890 N.E.2d 752, 756 (Ind. Ct. App. 2008), while
taking the facts stated in the charging information as true. Delagrange v. State,
951 N.E.2d 593, 594 (Ind. Ct. App. 2011). However, when, as here, the denial
rests on the trial court’s interpretation of a statute, we review the decision de
novo. McCown, 890 N.E.2d at 756.
[7] The trial court determined the statutes under which Tiplick was charged 6 were
not void for vagueness: 7
The defendant claims the dealing statute, the possession statute, the
nuisance statute and the look-a-like statute are void for vagueness.
The defendant argues that the dealing statute, the possession statute
and the nuisance statute include the term synthetic drug the definition
6
In his motion to dismiss, Tiplick challenged all counts of his indictment. On appeal, he challenges only
those alleging he conspired to deal in, dealt in, or possessed a synthetic drug. Those are counts VII, VIII, IX,
X, XI, XII, XIII, XIV, XV, XVII, and XVIII of the indictment.
7
The trial court also found and concluded the statutes did not violate the Separation of Powers Clause and
the information was not defective. As we find dispositive the vagueness claim, we need not consider those
other issues.
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of which contains a jumbled mix of chemicals and their analogs. This
chemical hodgepodge within the synthetic drug definition includes
cannabinoid, receptor agonists, stimulants, opiate receptor agonists, as
well as anything else the Pharmacy Board decides to include.
Defendant asserts that a person of common intelligence cannot be
expected to understand the entire synthetic drug and [sic] definition
and continuously monitor the promulgations and findings of the Board
which are not yet enacted. The Court disagrees and feels that is
exactly and precisely the duty of the citizens which is to monitor
statutes to determine what action they might take. Each year on July
1st hundreds of new statutes go into effect and it surely cannot be a
defense that the defendant cannot be expected to read all of the statues
and know what the laws are. In this case [Ind. Code §] 35-31.5-2-
321clearly [sic] provides the definition of a synthetic drug including
emergency rules promulgated by the [P]harmacy [B]oard.
Furthermore the criminal statute makes it quite clear that synthetic
drugs and their distribution are illegal. Before someone chooses to sell
a substance that might be a synthetic drug the statutes and emergency
rules are available and illegal synthetic drugs are currently listed.
Before selling a substance a citizen may review the rule to determine
what substances are banned. If it[’]s listed they shouldn’t sell it. On
the other hand if they don’t know what they are selling and choose to
sell it any way [sic] they do so at their own risk. The Court finds that
the Defendant’s void for vagueness argument as to this case should be
denied.
[8] (App. at 14-5.)
[9] Our Indiana Supreme Court stated in Brown v. State:
A challenge to the validity of a statute must overcome a presumption
that the statute is constitutional. State v. Lombardo, 738 N.E.2d 653,
655 (Ind. 2000). The party challenging the statute has the burden of
proving otherwise. Brady v. State, 575 N.E.2d 981, 984 (Ind. 1991).
Due process principles advise that a penal statute is void for vagueness
if it does not clearly define its prohibitions. Klein v. State, 698 N.E.2d
296, 299 (Ind. 1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 92
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S.Ct. 2294, 33 L.Ed.2d 222 (1972)). A criminal statute may be
invalidated for vagueness for either of two independent reasons: (1) for
failing to provide notice enabling ordinary people to understand the
conduct that it prohibits, and (2) for the possibility that it authorizes or
encourages arbitrary or discriminatory enforcement. City of Chicago v.
Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 1859, 144 L.Ed.2d 67, 79-80
(1999); Healthscript, Inc. v. State, 770 N.E.2d 810, 815-16 (Ind. 2002). A
related consideration is the requirement that a penal statute give a
person of ordinary intelligence fair notice that his contemplated
conduct is forbidden so that “no man shall be held criminally
responsible for conduct which he could not reasonably understand to
be proscribed.” Healthscript, Inc., 770 N.E.2d at 816 (quoting United
States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989,
996 (1954)). In State v. Downey, 476 N.E.2d 121, 123 (Ind. 1985), this
Court emphasized that “there must be something in a criminal statute
to indicate where the line is to be drawn between trivial and substantial
things so that erratic arrests and convictions for trivial acts and
omissions will not occur. It cannot be left to juries, judges, and
prosecutors to draw such lines.” Accordingly, the statutory language
must “convey sufficiently definite warning as to the proscribed
conduct when measured by common understanding.” Rhinehardt v.
State, 477 N.E.2d 89, 93 (Ind. 1985).
But a statute “is not void for vagueness if individuals of ordinary
intelligence could comprehend it to the extent that it would fairly
inform them of the generally proscribed conduct.” Klein, 698 N.E.2d
at 299; accord Lombardo, 738 N.E.2d at 656. And the statute does not
have to list specifically all items of prohibited conduct; rather, it must
inform the individual of the conduct generally proscribed. Lombardo,
738 N.E.2d at 656. The examination of a vagueness challenge is
performed in light of the facts and circumstances of each individual
case. Id.
[10] 868 N.E.2d 464, 467 (Ind. 2007). Tiplick was charged with multiple counts of
Class D felony dealing in a synthetic drug, Class D felony conspiracy to deal in
a synthetic drug, and Class D felony possession of a synthetic drug. By the
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standard articulated in Brown, the versions of Ind. Code §§ 35-48-4-10(a) and 11
effective at the time of Tiplick’s alleged offenses were unconstitutionally vague 8
as they related to the term “synthetic drug”9 as defined by Ind. Code § 35-31.5-
2-321(9).10
[11] At the time Tiplick allegedly committed the offenses, Ind. Code § 35-31.5-2-321
listed over sixty specific chemical compounds, and it included eleven sections
regarding compounds “structurally derived” from other chemicals. Ind. Code §
35-31.5-2-321(1) - (8) (2012). It provided a synthetic drug is “Any compound
determined to be a synthetic drug by rule adopted under IC 25-26-13-4.1.” Ind.
Code § 35-31.5-2-321(9) (2012). Ind. Code § 25-26-13-4.1 (2012),11 which
outlines the duties of the Pharmacy Board, states:
[12] (a) The board may adopt an emergency rule to declare that a substance
is a synthetic drug.
8
The relevant statutes have been amended since 2012. We address only those versions of the statutes
effective at the time of Tiplick’s alleged crimes, as issues regarding the current versions of the statutes are not
properly before us.
9
Prior to 2012, Ind. Code §§ 35-48-4-10 and 11 prohibited dealing in and possession of a “synthetic
cannabinoid.” “Cannabinoid” was changed to “drug” as part of Public Law 78-2012. The term “synthetic
drug” is used in most statutes, including Ind. Code § 35-31.5-2-321(9). However, the term “synthetic
substance” is used as part of Pharmacy Board Emergency Rule # 12-493(E).
10
Tiplick argues the “synthetic drug statutory scheme” is void for vagueness. (Br. of Appellant at 9.) As Ind.
Code § 35-31.5-2-321(9) and Ind. Code § 25-26-13-4.1 specifically deal with the definition of “synthetic
drug,” which is the crux of Tiplick’s void for vagueness argument, we will examine only those statutes.
11
Ind. Code § 25-26-13-41 (2012) was later amended to add other criteria the Pharmacy Board must consider
when adopting an emergency rule declaring a substance is a synthetic drug.
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[13] (b) The board may adopt an emergency rule declaring a substance to
be a synthetic drug if the board finds that the substance:
[14] (1) has been scheduled or emergency scheduled by the United States
Drug Enforcement Administration; or
[15] (2) has been scheduled, emergency scheduled, or criminalized by
another state.
[16] (c) A rule adopted under this section becomes effective thirty (30) days
after it is filed with the publisher under IC 4-22-2-37.1.
[17] (d) A rule adopted under this section expires on June 30 of the year
following the year in which it is filed with the publisher under IC 4-22-
2-37.1.
[18] (e) The board may readopt under this section an emergency rule that
has expired.
[19] Tiplick argues Ind. Code § 35-31.5-2-321(9) and by implication Ind. Code § 25-
26-13-4.1 are void for vagueness because their “numerous cross-references,
undefined terms, and required monitoring of Indiana statutes and
promulgations of the Pharmacy Board cannot be understood by an ordinary
person.” (Br. of Appellant at 27.) We agree.
[20] Tiplick’s charging information indicated he allegedly sold and possessed a
synthetic drug, identified in the probable cause affidavit as XLR11. That drug
was not listed as a synthetic drug under Ind. Code §§ 35-31.5-2-321(1-8) on
September 20, 2012, October 9, 2012, and October 10, 2012, the dates Tiplick’s
alleged crimes occurred, and nothing in the charging information indicates
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which Pharmacy Board emergency rule declared XLR11 a synthetic drug
pursuant to the provisions in Ind. Code § 35-31.5-2-321(9) and Ind. Code § 25-
26-13-4.1 (2012). A Pharmacy Board Emergency Rule, LSA Document # 12-
493(E) (“Emergency Rule”), declared XLR11 a “synthetic substance” effective
September 15, 2012.12 However, Ind. Code § 25-26-13-4.1 did not authorize the
Pharmacy Board to declare something a “synthetic substance” in an Emergency
Rule. Instead, the Emergency Rule permits the declaration of a substance as a
“synthetic drug.” While that distinction may seem trivial, we believe the
technical nature of this particular statute requires precision in language. For
example, the Pharmacy Board may declare a new chemical concoction used to
treat a deadly disease a “synthetic substance” and such a declaration would not
invoke the criminal consequences as would the Pharmacy Board’s declaration
of something as a “synthetic drug.” See Brown v. State, 868 N.E.2d 464, 468
(Ind. 2007) (noting alternate, legal uses for terms and the unconstitutional
vagueness stemming therefrom). This linguistic confusion only adds to the
vagueness of this statutory structure.
[21] To understand the charges against him, a person of ordinary intelligence would
have to first find the definition of “synthetic drug” in Ind. Code § 35-31.5-2-321,
12
The Emergency Rule was filed with the publisher on August 15, 2012. Therefore, pursuant to the language
of Ind. Code § 25-26-13-4.1, the Emergency Rule did not go into effect until September 15, 2012.
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determine the synthetic drug alleged to be illegal is not in the very long list 13 in
the statute, and finally look to Ind. Code § 25-26-13-4.1 to determine whether
the drug may have been declared a synthetic drug by a Pharmacy Board
Emergency Rule, the location of which is not specified in Ind. Code § 25-26-13-
4.1.
[22] To require a citizen of ordinary intelligence to meticulously search through the
criminal code, the administrative code, and not-yet-codified agency rules for
information regarding a charge, only to be sent on a “Where’s Waldo”
expedition is ludicrous. See Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1268
(10th Cir. Ct App. 2008) (“When a party’s brief fails to provide citations in
support of its factual assertions, we are left to scan volumes aimlessly for
asserted facts. But reading a record should not be like a game of Where’s
Waldo?”). No person of ordinary intelligence could determine what behavior is
prohibited by the term “synthetic drug” in Ind. Code §§ 35-48-4-10(a) and 11,
based on Ind. Code §§ 35-31. 5-2-321(9) and 25-26-13-4.1, and thus the portions
of Ind. Code §§ 35-48-4-10(a) and 11 in effect at the time of Tiplick’s alleged
13
The current statute appears to list in part (1) eighty-one specific compounds. Then, in parts (2) through
(12), it lists unnamed compounds “structurally derived from” other compounds. See, e.g., Ind. Code § 35-
31.5-2-321(2):
Any compound structurally derived from 3-(1-naphthoyl)indole or 1H-indol-3-yl-(1-
naphthyl)methane by substitution at the nitrogen atom of the indole ring by alkyl,
haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-
piperidinyl)methyl, 2-(4-morpholinyl)ethyl, or 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-
methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not further
substituted in the indole ring to any extent and whether or not substituted in the naphthyl
ring to any extent.
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offenses are void for vagueness to the extent they rely on definitions in Ind.
Code §§ 35-31.5-2-321(9) and 25-26-13-4.1. See Healthscript, 770 N.E.2d at 816
(holding the requirement that a person search through multiple statutes, then
through the administrative code, “lacks the ‘sufficient definiteness’ that due
process requires for penal statutes.”).
[23] We distinguish our holding here from those in two recent cases, Kaur v. State,
987 N.E.2d 164, 168 (Ind. Ct. App. 2013) and Elvers v. State, 34A02-1404-CR-
239 (Ind. Ct. App., December 17, 2014), both which declined to hold Ind. Code
§§ 35-31.5-2-321(1)-(8) void for vagueness. In Kaur, the State charged Kaur
with dealing and possession of AM-2201, which is specifically referenced as a
synthetic drug under Ind. Code § 35-31.5-2-321(1)(QQ) (2012). We affirmed
Kaur’s convictions, because Kaur’s constitutional arguments centered around
Ind. Code § 35-31.5-2-321(9), which was not the definition of “synthetic drug”
relied upon in Kaur’s convictions. Regarding Ind. Code § 35-31.5-2-321(9), we
stated, “We leave for another day - and express no opinion on - the question of
whether a person charged with possession of one of the Board-specified
synthetic drugs would have a meritorious Article II, Section 1 argument.”
Kaur, 987 N.E.2d 164, 169 n.6. That day has come in the instant case, as
Tiplick was charged with dealing and possession of a synthetic drug, XLR11,
which was allegedly specified as a synthetic drug by a Pharmacy Board
Emergency Rule.
[24] In Elvers, we clarified our decision in Kaur, holding the use of scientific
terminology in Ind. Code § 35-31.5-2-321(1)-(8) does not render the statute
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unconstitutionally vague because the “novelty, complexity, and rapidly-
evolving nature of synthetic drugs necessitates some scientific terminology in
the law.” Elvers, slip op. at 3. Elvers also acknowledged his case did not involve
those synthetic drugs defined as part of Pharmacy Board Emergency Rules, and
only those synthetic drugs “specifically identified in the statute [Ind. Code § 35-
31.5-2-321].” Id.
[25] As Ind. Code §§ 35-48-4-10(a) and 11 form the basis for Counts VII, VIII, IX,
X, XI, XII, XIII, XIV, XV, XVII, and XVIII, and we hold those statutes are
unconstitutionally vague based on the definition of “synthetic drug” set forth in
Ind. Code § 35-31.5-2-321(9), the trial court erred when it denied Tiplick’s
motion to dismiss those charges.
[26] Reversed and remanded.
Kirsch, J., concurs. Bailey, J., dissents, with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Christopher Tiplick, January 27, 2015
Appellant-Defendant, Court of Appeals Cause No.
49A04-1312-CR-617
v. Appeal from the Marion Superior
Court; The Honorable Steven
Eichholtz, Judge;
State of Indiana, 49G20-1210-FC-70439
Appellee-Plaintiff
Bailey, Judge, dissenting.
[27] Upon review, the majority holds as void for vagueness the statutory scheme
that criminalizes the dealing in and possession of synthetic drugs. The majority
reasons that “[n]o person of ordinary, or even extraordinary, intelligence could
determine what behavior is prohibited by the term ‘synthetic drug’ in Ind. Code
§§ 35-48-4-10(a) and 11,” and that “to be sent on a ‘Where’s Waldo’ expedition
is ludicrous.” Slip Op. at 8 (citing Aquila, Inc. v. C.W. Mining, 545 F.3d 1258,
1268 (10th Cir. 2008) (relating to the obligations of parties to cite to the record in
support of statements of fact); Healthscript, Inc. v. State, 770 N.E.2d 810, 816
(Ind. 2002) (holding as void for vagueness a statutory scheme criminalizing
certain acts as Medicaid fraud)). Because I disagree with the majority’s
reasoning here, I respectfully dissent.
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[28] Central to the majority’s reasoning is the Indiana Supreme Court’s ruling in the
Healthscript case. In Healthscript, a pharmacy was charged with Medicaid fraud
“on the theory that Defendant had overcharged Medicaid for sterile water.”
770 N.E.2d at 813. Healthscript sought to dismiss the charging information,
contending that the applicable criminal statute was void for vagueness because
it was not “sufficiently definite to put [Healthscript] on notice that its alleged
conduct was proscribed.” Id. The charging statute defined as Medicaid fraud
the “fil[ing] a Medicaid claim … in violation of Indiana Code § 12-15.” Id.
(quoting I.C. § 35-43-5-7.1(a)(1) (Supp. 1997)).
[29] In reversing the trial court’s denial of Healthscript’s motion to dismiss the
charges, the Healthscript Court conceded that the criminal statute “cross-
references Ind. Code § 12-15.” Id. at 816. But the court observed that the cross-
reference was extraordinarily broad. The reference in the criminal statute
directed the reader to an entire article of the Indiana Code, “covering 50 pages
of the 1993 Code and comprising 280 sections organized in 37 chapters.” Id.
Many of the chapters of the code pertained only to state agencies responsible for
administering Medicaid; others pertained to Medicaid recipients. Id. Thus, the
court reasoned, “[t]he effect of the statute is to say that a provider is prohibited
from filing a Medicaid claim ‘in violation of’ nothing more specific than this
vast expanse of the Indiana Code.” Id. The Healthscript Court concluded that
this was not “fair warning…in language that the common world will
understand, of what the law intends to do if a certain line is passed.” Id.
(quotations omitted).
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[30] I cannot agree with the majority that the statutory scheme at issue here is
similarly vague. Each statutory cross-reference at issue here directs the reader
to one, and only one, section of the Indiana Code. The rulemaking provision of
Section 25-26-13-4.1, under which the Board of Pharmacy may make
emergency rules concerning synthetic drugs, in turn refers directly to the
statutory procedure under which emergency rules may be published. See I.C. §
4-22-2-37.1. Such emergency rules are published in the Indiana Register in a
format determined by the publisher. I.C. §§ 4-22-2-37.1(d) – (f). The chemical
substance for which Tiplick was charged here, XLR11, was expressly identified
as a synthetic drug under Emergency Rule 12-493(E), published in the Indiana
Register in August 2012.
[31] There are a finite number of locations in which an individual must have looked
after August 2012 to determine whether XLR11 was a synthetic drug covered
by an Indiana Pharmacy Board rule: four statutory provisions and a set number
of Indiana Pharmacy Board rules. Unlike the facts in Healthscript, the
substantive provisions at issue here do not implicate a broad variety of possible
parties and sets of statutory and regulatory provisions, almost all of which are
irrelevant to a defendant like Tiplick. I thus cannot agree with the majority’s
“Where’s Waldo” characterization of the statutory scheme.
[32] It seems to me that Tiplick’s void-for-vagueness challenge is more akin to an
attempt to claim ignorance of the law as a defense to criminal liability. “[I]t is
well-settled that ignorance of the law is no excuse for criminal behavior.”
Dewald v. State, 898 N.E.2d 488, 493 (Ind. Ct. App. 2008), trans. denied. While
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“ignorance or mistake in point of fact” may in some circumstances excuse “acts
honestly done while so misled,” nevertheless “every man is presumed to know
the laws of the country in which he dwells.” Marmont v. State, 48 Ind. 21, 31
(1874).
[33] Not having looked to the laws that apply to one’s actions does not excuse an
individual from violating those laws. Tiplick was alleged to have engaged in
the sale of a drug; he does not claim that the drug was not subject to an
emergency regulation. The applicable laws and regulations are not so complex
or overly broad as to preclude a person of ordinary intelligence from having fair
notice of the criminal nature of the sale of XLR11 on the basis of vagueness. 14
[34] I therefore respectfully dissent.
14
Of particular note is that Tiplick was not charged as the result of a street-corner sting. The probable cause
affidavit indicates that he was instead working at a retail establishment known as the “Smoke Shop” in 2012,
at least one year after the Indiana General Assembly first passed legislation to respond to the sale of synthetic
drugs at retail establishments. See Kaur v. State, 987 N.E.2d 164, 167 (Ind. Ct. App. 2013), trans. denied;
App’x at 27.
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